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CONGRESS, UNITED STATES. 



anxious to have a fair bill adopted. I was ex- 

 ceedingly anxious to agree with the committee 

 in the recommendation of a fair proposition ; 

 but when we are preparing a bill in the pres- 

 ence of a case made up, ready to be tried, the 

 papers all signed and in due order, I insist that 

 it shall be a fair bill under which the condition 

 of things shall not be unfairly changed. 



" I wish to say a few words in regard to this 

 bill. If the power to count this vote is vested 

 in the two Houses, and is not in the President 

 of the Senate, then the duty must be performed 

 by the two Houses ; it cannot be delegated. 

 This was the precise point, as I understood it, 

 of the argument of the Senator from Vermont, 

 because if he were to admit that the power is 

 vested in the two Houses under the Constitu- 

 tion, he would be compelled to admit, good 

 lawyer as he is, that that power cannot be del- 

 egated ; but by placing it as a floating power, 

 that is located nowhere until it is located by 

 an act of Congress, then Congress would have 

 the right to deposit this power with a commis- 

 sion. 



" The commission created is a mixed com- 

 mission, partly inside and partly outside, five 

 Senators, five Representatives, and five judges. 

 The judges are taken, not because they are 

 judges, not because they are members of the Su- 

 preme Court, but because they are men of emi- 

 nent character who happen to occupy that po- 

 sition. Four of them are chosen by circuits. 

 The Senator from Vermont hardly did himself 

 justice on Saturday when he argued that they 

 were chosen by circuits on account of geograph- 

 ical distribution. They were chosen by circuits, 

 as I understand it, not because of geographical 

 distribution, but because of the political antece- 

 dents of the men who preside in those circuits. 

 When the bill, instead of naming the judges, 

 names the circuits, it presents a harmless little 

 sham that deceives nobody. 



" Four judges are taken by the bill because 

 of their political antecedents, two on each side. 

 In other words, the four judges are selected 

 upon political grounds, equally divided, it is 

 said, in order to make the bill a fair one. Nev- 

 ertheless, selection is made in the Supreme 

 Court on political grounds. If we are to deal 

 with the Supreme Court and I confess I looked 

 upon that proposition with more favor than 

 the other I thought we ought to have taken 

 the whole court, and not admit by any form 

 of provision that we believed politics entered 

 into the court; not divide it up on political 

 grounds; not assume that the duties of that 

 court are liable to be influenced by their polit- 

 ical prepossessions, but take the whole court 

 as a court. I thought that the least objection- 

 able. It is true the other day, when there was 

 a constitutional amendment here referring this 

 matterjbo the Supreme Court, I voted against 

 it ; but I did so chiefly because it reenacted 

 the electoral college and reenacted an election 

 of President by the House of Representatives 

 by States. But if we are to take an outside 



tribunal it seemed to me to be far better that 

 we should take the court and take it as a 

 court, take all the judges, and not pick around 

 among them to get an equal number on polit- 

 ical grounds. I thought that was a blow at 

 the court and would do it more injury than 

 any course that could be taken. They are to 

 take a fifth. Four judges are to select a fifth. 



"Here is a very grave question presented, 

 right at the threshold : What is the character of 

 these commissioners ? Are they officers ? They 

 are sworn ; the very highest duty is imposed 

 upon them, the decision of the greatest case 

 that can arise under our institutions. If they 

 are officers, are they not to be appointed as 

 other officers under the Constitution of the 

 United States are appointed ? Can we take 

 four men by name and authorize them to ap- 

 point the fifth and submit to this court thus 

 organized this great case ? Is it not a court to 

 all intents and purposes ? You call it a com- 

 mission, but names are nothing. It is a court 

 invested with the very highest jurisdiction to 

 decide both law and fact, expressly charged 

 with deciding the question, What are the pow- 

 ers of each or of both Houses of Congress? 

 and expressly charged with finding the fact as 

 to who have been elected electors for President 

 of the United States. If it is a court, should* 

 it not be appointed as the Constitution requires 

 other courts to be, and if these men are public 

 officers, should they not be appointed as officers 

 of the United States are required to be ap- 

 pointed ? This is a contrivance, to use the very 

 mildest words, a contrivance, a patched-up 

 thing, five Representatives, five Senators, four 

 judges first, and they to choose a fifth, and thus 

 this tribunal is to be created that is to make a 

 President of the United States. There are no 

 analogies for it in our Constitution or in our 

 laws or in our history. We have no tribunals 

 made up in that way. 



" It is a fundamental principle of law, in con- 

 nection with the election of a President, in pre- 

 serving and defining the rights of the States, 

 that the action of the States shall be received 

 unquestioned by the Congress of the United 

 States, or by that power, whatever it may be, 

 that shall count the vote; and any authority 

 conferred upon this commission, or that might 

 be conferred by an act of Congress upon the 

 President of the Senate or any other agency 

 selected to go behind the returning board of a 

 State and count the votes, would be, in my 

 judgment, a gross violation of the spirit and 

 letter of the Constitution, revolution, and the 

 end of presidential elections under our system. 



" I wish briefly to call the attention of the 

 members of the Senate to this bill. I speak 

 of the jurisdictional part, that part conferring 

 jurisdiction upon this commission, and it is the 

 vital part of the bill. We need not deceive 

 ourselves for a moment about this business. 

 We know that both parties are looking in- 

 tently to that question and at that particular 

 point. We may affect to be oblivious of it 



